UK Borders Bill
Introduction
2. This is an immigration and asylum bill. The
topics in the bill are set out in paragraphs 3 to 20 of the Explanatory
Notes and a memorandum from the Home Office about the delegated
powers in the bill is printed at Appendix 1 to this Report. The
bill includes two Henry VIII powers subject only to negative procedure
(clauses 9(6) and 23(3)), both justified in our opinion.
Biometric registration regulations — clauses
5 to 8
3. The powers in clauses 5 to 8 to make regulations
about biometric registration contain the most significant delegations
in the bill and are described in paragraphs 3 to 22 of the memorandum.
The powers are subject to affirmative resolution. We first make
some specific observations about the provision and then comment
on the cumulative effect of the delegations.
4. Clause 5(3)(a) to (c), (e) and (f) (paragraphs
9 and 11 of the memorandum) are similar to provisions in section
126 of the Nationality Immigration and Asylum Act 2002 ("the
2002 Act"). That section enables the Secretary of State by
regulations to require information about external physical characteristics
in connection with immigration applications or from persons entering
or seeking to enter the UK.
5. Clause 5(7) provides for immigration rules
(subject to negative procedure) to require a person applying for
the issue of a biometric immigration document to provide non-biometric
information to be recorded in it or retained by the Secretary
of State. We were unsure from the memorandum (paragraphs 13
and 14) to what extent this enables information to be required
which cannot already be required by immigration rules. So far
as it does enable such information to be required, we consider
that the provision requiring it should be in the regulations subject
to affirmative procedure.
6. Although clause 7 requires regulations to
include provision about the effect of failure to comply with a
requirement of regulations under clause 5(1), and that provision
may include requiring the Secretary of State to consider giving
a notice under clause 9 (paragraph 21 of the memorandum), clause
9 itself is not affected. Clause 9 appears to enable the Secretary
of State by notice to require someone to pay a penalty of up to
£1,000 for failure to comply with a requirement of the regulations,
regardless of whether or not the regulations have required the
Secretary of State to consider giving a notice.
7. Clause 8(2), which enables the regulations
to allow information required and obtained for the immigration
purposes referred to in clause 5(1) to be used for specified purposes
which do not relate to immigration, is precedented in section
126(4)(g) of the 2002 Act.
CUMULATIVE EFFECT OF THE DELEGATIONS
8. The concept of biometric profiling for immigration
purposes is not new: there is provision for it at sections 141
to 145 of the Immigration and Asylum Act 1999 ("the 1999
Act") and section 126 of the 2002 Act. In a wider context,
the concept is central to the Identity Cards Act 2006 ("the
ID Cards Act") and the bill contemplates that the biometric
immigration document might be combined with an identity card (clause
5(4)).
9. The delegations in this bill are broader than
section 126 of the 2002 Act. The main principles about biometric
registration which appear in the bill itself are:
i) anyone subject to immigration control may
be required to apply for a biometric immigration document and
to use it for purposes connected with immigration;
ii) an applicant must provide information which
may include biometric information and submit to a process for
obtaining biometric information;
iii) that information might be allowed to be
used for non-immigration purposes; and
iv) failure to apply for or use a biometric information
document can result not just in a penalty of up to £1,000
but also in refusal of a claim or cancellation of leave to enter
or remain.
10. Within that framework, the bill leaves the
detail to regulations. Significant aspects left to regulations
include:
i) the categories of person subject to immigration
control who must have a biometric immigration document;
ii) the immigration purposes and procedures for
which the document must be used;
iii) the other circumstances (where a question
arises about nationality or immigration status) in which the document
must be used;
iv) the content of the document;
v) the circumstances in which the document may
be cancelled or suspended;
vi) the biometric information which must be provided
and recorded;
vii) the precise consequences of failure to comply
with any particular requirement; and
viii) the immigration and non-immigration purposes
for which information may be used.
11. We draw the following particular aspects
of the regime to the attention of the House:
i) Clause 5(1)(b)(iii) enables regulations, where
a question arises about a person's status in relation to nationality
or immigration, to prescribe circumstances in which the biometric
immigration document must be used. Though clause 5(5) prevents
the power being used to require the carrying of the document at
all times, it is still potentially very wide and neither the Explanatory
Notes nor the memorandum explain why this is necessary;
ii) clause 5(2)(g) enables regulations to provide
for inspection or cancellation of a document (in contrast to section
11(2) of the ID Cards Act which specifies circumstances for cancellation
in the Act itself), with neither the bill itself nor the Explanatory
Notes nor the memorandum giving an indication of the circumstances
in which cancellation may take place;
iii) clause 5(2)(h) requires the holder of a
biometric immigration document "to notify the Secretary of
State in specified circumstances" but does not indicate what
is to be notified.
iv) clause 5(2)(k) enables the regulations to
permit the Secretary of State, on issuing a biometric immigration
document, to require the surrender of other documents. There is
no restriction on the category of documents which may be required
to be surrendered;
v) clause 5(3)(d) enables the regulations to
permit the Secretary of State, instead of requiring information
to be provided, to use any information already in his possession
"for whatever reason". Though this might be a way of
preventing someone being asked to provide the same information
twice, it raises issues as to the ability of the applicant to
check that the information held (and given originally for a different
purpose) is correct. We expect that the House would wish to see
appropriate safeguards in the regulations;
vi) clause 5(3)(e) and (f) enable the regulations
to require an authorised person to have regard to a code, or
provisions of a code. But in section 126 of the 2002 Act the codes
to which an authorised person may be required to have a regard
are limited to those under the Police and Criminal Evidence Act
1984 (or the Northern Ireland equivalent).
vii) clause 8 requires the regulations to make
provision about the use and retention by the Secretary of State
of biometric information provided in accordance with the regulations.
There is a requirement for the regulations to include provision
for destruction of both biometric and non-biometric information.
But the uses of the information obtained which may be permitted
by the regulations are unrestricted by the bill; and
viii) most importantly, one cannot discern from
the bill what failures to do what will attract what consequences.
Clause 7(2) lists some of the sanctions which would be applied
and clause 9 applies to any requirement of regulations under clause
5(1). The bill has a wider potential than that of section 126
of the 2002 Act or of immigration rules. For example, the power
could be used to permit cancellation of leave to remain for failure
to comply with a requirement to produce a biometric immigration
document to resolve someone's nationality status in a non-immigration
matter (clause 5(1)(g)(iii)).
12. The cumulative effect of these issues,
despite the affirmative procedure, gives us cause for concern.
We do not however suggest that the delegations are inappropriate:
the bill does contain sufficient principle. Our intention is instead
to indicate areas where the delegation may be wider than reasonably
necessary to achieve the policy intention of the bill and where,
in our opinion, the bill should more tightly define the framework
for the regulations.
Points-based applications: evidence — clause
19
13. Clause 19 (new section 85A(5) of the Immigration
and Asylum Act 2002) is explained at paragraphs 39 and 40 of the
memorandum. It enables provision to be made about when evidence
is to be treated as submitted in support of, and at the time of
making, an application. This has significance for the purposes
of whether or not the Asylum and Immigration Tribunal may consider
an applicant's evidence. Under the bill, the provision is to be
made by immigration rules, which are made by the Secretary of
State and for which there is a negative procedure (though the
rules are not statutory instruments). Other procedural and evidential
provision for the Tribunal is however made by rules by the Lord
Chancellor (subject to negative procedure after consultation with
the Council on Tribunals) under section 106 of the 2002 Act. We
were not convinced by the explanation for this exception at paragraph
39 of the memorandum (that the Points Based System will operate
within Immigration Rules) and draw the provision to the attention
of the House so that the Minister might be asked to explain why
the power was not in this instance also delegated to the Lord
Chancellor.
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